The integrity, independence and impartiality of the judiciary are essential to protecting human rights and fostering economic development.
But is this enough to ensure social justice and an inclusive legal state?
Unfortunately, for disadvantaged and vulnerable groups across Europe and the Commonwealth of Independent States, the lack of access to justice is widespread.
And it is precisely the status of the judiciary that has proven to be a key weakness of many post-communist regimes in the region, as confirmed by many evaluations of national judicial systems, processes, and components.
A preliminary desk review in late 2011 revealed a lack of information on the capacity of judicial institutions to address the needs of specific groups, namely people with disabilities, minorities and women.
Access to justice agenda affects judicial integrity
Most people associate judicial integrity with an accountability, transparency and integrity agenda. But without unrestricted access to justice, does judicial integrity really exist? Can it survive beyond glorious declarations or official pronouncements? If people do not have access to judicial services, they will not be able to get redress, and, judge quality of justice. It is likely that public confidence in the judicial system will suffer.
The challenges for marginalized communities and vulnerable groups in accessing justice are even greater due to historic reasons, discrimination, economic deprivation, and political marginalization. All of these, as Amartya Sen argued in his seminal book ‘The Idea of Justice’, ‘… will diminish the role of public reason in establishing what can make societies less unjust.’
Based on a recent UNDP analysis of national studies (pdf) carried out in Bosnia and Herzegovina, Kazakhstan, Kosovo (referred to in the context of UN Security Council 1244/1999), Kyrgyzstan and Serbia during 2011 and 2012, it is fair to say that there are institutional capacity and knowledge gaps in judicial institutions to address the needs of specific segment of population (including women, minorities, people with disabilities).
This is worrying as it erodes people’s confidence in the justice system, and, further limits both the access to, and quality of, justice.
Going beyond Bangalore principles
The Bangalore Principles of Judicial Conduct (2002) (pdf) set out six principles to guide the proper discharge of the judicial office: Independence, impartiality, integrity, propriety, equality, and competence and diligence. Furthermore, the United Nations Office on Drugs and Crime (UNODC) recently released an Implementation Guide and Evaluative Framework for Article 11 of the UN Convention Against Corruption (UNCAC) (pdf).
These are positive first steps toward making equal access to justice a reality, but it is crucial that we now act on these guidelines to address the specific needs of those who are most in need of judicial services.
To act, we must first identify the key barriers faced by disadvantaged and vulnerable groups in protecting their rights and accessing legal protection mechanisms. A recent report from UNDP in Europe and Central Asia found that the main barriers experienced by women, people with disabilities and minorities are: Widespread poverty, discrimination, public prejudice, low education, and illiteracy.
It was also found that judges, lawyers and court staff lack sufficient awareness of the specific needs of these groups.
Further compounding the issue is that marginalized groups do not have equal opportunities when it comes to political participation and are underrepresented in political decision-making within the legislative, executive and judicial authorities at all levels.
Also, a lack of political will and rigid cultural norms do not favour the improvement of conditions for women, people with disabilities or minorities.
The quest for inclusive social justice
Although most countries in the region have adopted policies for addressing the judicial needs of marginalized communities, none has outlined specific activities or allocated resources to enact these policies in the real world.
In this light, UNDP is working on enabling a strong link between policy-level interventions and operational outcomes in order to make an impact on the lives of target groups. This will require a comprehensive programmatic approach throughout the region to maximize connections among the different stakeholders (both rights-holders and duty-bearers) and to act as a platform for promoting the coordination and capacity development of national actors to engage in planning, reform and multi-stakeholder dialogue.
Recently, UNDP introduced Legal Aid for Justice, an initiative designed to provide comprehensive support to legal aid systems across the region, using the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems as its foundation. This initiative will be further deepened by a series of related studies and publications based on the needs of individual countries.
Achieving judicial integrity is not a top-down, supply-driven process. We need to ensure genuine civic engagement, especially with young people, in order to empower women, disadvantaged and vulnerable groups—and create a bottom-up demand for judicial accountability.
Let’s keep the conversation going in 2014!
*Hereafter referred to in the context of United Nations Security Council Resolution 1244/1999